II.
THE PLAN OF THE CONSTITUTION.
To draw up a plan is almost inevitably to express a philosophy. In shaping the sequence and proportion of the parts which are to comprise the whole, the trick of the mind will out; and it is in that trick of the mind that, ultimately, all philosophies are contained. Perhaps there are few who, after consideration, would deny this in all the ordinary (greater or lesser) concerns of life; but many will think it strange in a matter so dry as the drafting of a Constitution. Yet even in the drafting of a Constitution it will be found equally true.
A Constitution may be likened to a pyramid, the apex of which is the Executive Authority, and the base the People. The first question that therefore at once arises is, where shall one begin first with this pyramid? But before this question can be answered, another must first be met; and it is, whether the base is hung from the apex, or whether the apex rests on the base? What relation has the Executive Authority (whether kingly, presidential or consular) to the People, and the People to the Executive Authority; and which, names and titles apart, is ultimately the Sovereign? These are ripe questions; and only in the making of the plan can they be answered.
I have already shewn that the writing of a Constitution is itself evidence that the people are sovereign, even though no statement to that effect is included in the writing. But when one comes to look in the Constitutions of the world it is curious to note the persistence with which that truth is overlooked. The Canadian Constitution, for example, having provided for the Union of Provinces by which the Federation was created, begins at once with the statement that “the Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.” Nothing has been said about a Legislature—nothing about the people of Canada. The Constitution begins at once with an Executive Authority which nothing has brought into being, and which therefore exists of its own right, original and indefeasible, all things else in the Constitution depending from it. The pyramid is hung from heaven, for the philosophy of the plan is to be found in the mediaeval myth of the Divine Right of Kings.
The Constitution of Canada consequently proceeds downwards from that apex to the Legislature; and in that Legislature, according to the philosophy, the Senate comes before the Commons. “There shall,” it says, “be one Parliament for Canada, consisting of the Queen, an Upper House, styled the Senate, and the House of Commons.” As for the base, it is found nowhere at all. The interest is exhausted before it is reached; and the People are not mentioned.
I have taken the Canadian Constitution because it is specially mentioned in the present draft of the Constitution of Saorstat Eireann; but the same supposition is found in many other constitutions, such as those of Denmark, Sweden, South Africa. In them are to be found the relics of the mediaeval theory of government, of a divine authority conferred on a family, which therefore ruled of its own right; and of its own grace summoned the subjects of that authority for counsel and advice. Therefore in these constitutions it is assumed that the sovereignty is above and the subjection below—even though no one to-day supposes that the practical facts are what they assume them to be.
In the Irish Constitution, as in most modern constitutions, this order is inverted. The sovereignty is below, and the subjection is above. Never once throughout the Irish Constitution (either in its original or its present form) are the people once considered as subjects, but always as sovereign citizens. The pyramid is based on the broad earth, in the divine right of the people; and a beginning is therefore made with the base, proceeding upward to the apex. The plan in fact is reversed because the philosophy is different.
The Constitution of Saorstat Eireann begins with the people, and with a statement of the sovereignty of the people. “All powers of Government,” it says in Article 2, “and all authority, legislative, executive and judicial, are derived from the people and the same shall be exercised in Saorstat Eireann through the organisations established by or under, and in accord with, this Constitution.” In this Constitution, therefore, the people of Ireland establish their own right, original and indefeasible, and all things and persons and institutions named or created by or under it depend from them. That is in the present, as it was in the original, draft. Whatever institution or organisation is established to act on their behalf, acts under an authority conferred by them; and in accord with the specific bestowal of that authority; and not otherwise. Whatever person or power is named, is named to act on their behalf; acts under the same authority; in accord with the specific bestowal of that authority; and not otherwise. The people confer of their own right; and what they may confer they may withdraw. If the authority they confer be abused or transgressed, it ceases thereupon to have any sanction or reverence, and possesses no binding effect. That is to say, in the terms of my figure, the apex of the pyramid rests on the base, is hung from no mythical divine right of kings, and has no support outside the people of Ireland.
The people, consequently, are citizens of a free state, not the subjects of authority. It is necessary, therefore, at once to state who are the citizens of this state, and what constitutes their citizenship. This the next article proceeds to define. In this article the whole question of future citizenship is referred to legislation. It properly belongs to legislation, since it includes a number of complex matters and details quite unsuited to a Constitution. Yet there must be an original citizenship, otherwise the service of the state could not begin. Article 3, therefore, states what constitutes the original citizenship of Saorstat Eireann; and leaves all matters “governing the future acquisition and termination of citizenship” to be “determined by law,” making it a constitutional provision, however, that “men and women have equal rights as citizens.” And Article 4 provides that the official language of that citizenship shall be the Irish language.